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ATTACKS ON UNARMED ENEMY MERCHANT 

VESSELS 



Bv CHARLES CHENEY HYDE 



[Reprinted from the Proceedings of the American Society of Inter- 
national Law at its Eleventh Annual Meeting held at Washington, 
D.C., April 26-28, 1917.] 





ATTACKS ON UNARMED ENEMY MERCHANT VESSELS 

Address by Chakles Cheney Hyde, 

Of the Chicago Bar, Professor of International Law in Northwestern 
University Law School 

May a belligerent warship lawfully attack at sight an unarmed enemy 
merchantman? It may occasion surprise that a speaker before the Ameri- 
can Society of International Law should venture to raise such an inquiry 
at such a time. The writer shares, however, what is doubtless the view of 
all here present, that a belligerent warship normally lacks that right. While 
such a vessel may lawfully attempt to gain control of or destroy all enemy 
ships not exempt from capture, the law of nations is vitally concerned with 
the processes employed. It does not sanction the needless sacrifice of life 
or property. 

It is still worth while to observe how the immunity of the merchant- 
man from attack at sight has developed, and again, what conduct, if any, 
on the part of such a vessel subjects it to treatment such as may be law- 
fully accorded a public armed ship. Finally, it is important to consider 
whether the equities of the merchantman are restricted by reason of the 
nature and limitations of the fighting craft of the enemy. 

Long before the European War, nations were agreed that unarmed 
enemy merchant vessels were in general not subject to attack at sight, 
and that if they were guilty of no improper conduct, the propriety of 
attack or destruction was dependent upon the giving of opportunity for 
the removal of persons on board to a place of safety. Such respect for 
human life was, moreover, broadly acknowledged without discrimination 
between carriers of passengers and freight, and irrespective of the nation- 
ality of the persons involved. 

In days when privateering flourished the unarmed merchantman was 
a thing unknown. Ships of commerce did not put to sea without substan- 
tial armament. This at times sufficed to enable the possessor to offer 
prolonged resistance and positive danger to any type of vessel encountered. 
Consequently there was no reason to deal lightly with a vessel itself cap- 



able of initiating hostilities, and possibly alert to do so whenever favorable 
opportunity presented itself. Dictates of humanity could only urge 
restraint when at least, apart from other considerations, the merchantman 
ceased to be a source of danger to the naval forces of the enemy. The 
earliest instructions to American privateers, dated April 3, 1776, authorized 
the commanders by force of arms to "attack, subdue, and take all ships 
and other vessels" belonging to the inhabitants of the enemy's country. 
There was no suggestion that any ships belonging to them should be treated 
with leniency. As doubtless the entire merchant marine of the enemy 
was armed, at least defensively, it was logical that the instructions should 
place all enemy vessels in the same category. The instructions of Presi- 
dent Madison to American privateers issued in 1812, stated that "towards 
enemy vessels and their crews, you are to proceed, in exercising the rights 
of war, with all the justice and humanity which characterize the nation of 
which you are members." No discrimination was, however, made in 
respect to any class of enemy ships, and doubtless none was thought of. 

With the abandonment of privateering and the confining of hostilities 
to public vessels specially adapted for war, the arming of merchantmen 
became increasingly infrequent because of the helplessness of such vessels 
in engagements with a warship, which was the only type of craft from 
which acts of aggression were to be anticipated. The latter, moreover, 
with its vast preponderance of offensive power and defensive strength, 
found the merchantman a negligible danger and regarded it rather as an 
object of prey. Thus the very weakness of the latter became a safeguard, 
and the unarmed merchantman gained the right to be called upon to sur- 
render before attack. 

Although useful to its own state as a carrier of articles needed for the 
prosecution of war, the enemy merchantman did not lose the right to 
demand a signal to surrender before being attacked. Respect for human- 
ity still outweighed the claims of military necessity, a fact which neither 
the writings of publicists nor the naval codes of maritime Powers pur- 
ported to deny. 

At the present time an unarmed enemy merchant vessel, such as a 
trans-Atlantic liner of great tonnage and high speed, although designed 
and employed primarily for the transportation of passengers and mail, is 
still capable of rendering incidentally substantial military service as a car- 
rier of war material. Its speed may enable the vessel to outdistance any 
pursuer and to keep beyond the range of a signal to stop. Wireless tele- 
graphic equipment may offer means of summoning aid whenever needed. 
The instant destruction of the ship without warning may thus offer the sole 



..., 2! 1918 



means of preventing its escape and the delivery of contraband articles at 
their destination. The success of the voyage, despite its principal purpose, 
may serve to prolong the war by adding to the resources of the state to 
which the vessel belongs. It is not believed, however, that the indirect 
harm to be wrought in consequence of escape equals that to be anticipated 
from the deliberate disregard and destruction of the lives of the occupants 
of the ship. Claims of military necessity still fail to turn the scales of 
justice. 

The unarmed freighter, not so given over to the transportation of war 
material as to be deemed primarily an instrument of belligerent service, is 
believed to be entitled to similar treatment. A total absence of passen- 
gers does not deprive officers and crew of safeguards which are fairly due 
noncombatants. Nor does the smallness in number of the individuals 
whose lives are at stake weaken the equities of the occupants of the ship, 
unless it is bent on an essentially hostile mission. The slower speed of the 
vessel as compared with that of the passenger liner, lessens, moreover, the 
chances of its escape in case of pursuit. 

Doubtless the peculiar occupation or sinister conduct of an unarmed 
merchantman may so strengthen the equities of an enemy warship as to 
cause the claims of military necessity to outweigh every other considera- 
tion. The cases falling within this category do not, however, weaken the 
principle that the carrier is normally exempt from attack at sight, or that 
the enemy vessel which fires upon it without warning assumes the burden 
of showing that its victim has forfeited the right to exemption from such 
treatment. 

The question presents itself whether the right of exemption is forfeited 
by the attempt of the merchantman to escape capture. All will agree that 
any form of resistance by such a vessel destroys its immunity. This is 
true when, for example, an unarmed surface craft attempts to ram its 
assailant. It is also true, according to the Department of State, when an 
armed merchantman, prior to a summons to surrender, and yet aware of 
the approach of an enemy warship, uses its armament to keep the enemy 
at a distance. 

The attempt of an unarmed merchantman of any type to escape, either 
by flight on the surface or by submerging, prior to a signal to surrender or 
to come to, and with the obvious purpose of keeping beyond the range of 
a recognized pursuer, does not authorize the latter to attack the vessel 
without warning. The situation is otherwise, however, when the vessel, 
although unarmed, is a public ship, or one engaged primarily in a public 
service connected with the prosecution of the war. 



Any belligerent vessel of any kind or type exposes itself to instant 
attack, if after a reasonable summons to surrender, it persists by any pro- 
cess, in an attempt to escape. After the receipt of such a signal or follow- 
ing the abandonment of flight, in consequence thereof, the attempt to 
summon aid by wireless telegraph or other process, is analogous to resist- 
ance and justifies the enemy in taking summary steps to cause its discon- 
tinuance. These might produce a difficult situation, in case the call for 
aid brought to the scene an armed ship endangering the safety of the 
enemy or frustrating its attempt to effect a capture. In such a situation, 
however, the Department of State appears to hold that the mere effort to 
secure assistance should not alter the obligation of the warship seeking to 
make the capture to respect the safety of the lives of those on board the 
merchantman. 

As between opposing belligerents, the employment of ruses untainted 
by perfidy, such as the use by an unarmed ship of a neutral flag in order 
to prevent the detection of its nationality, does not wholly deprive the 
user of the right to enjoy an immunity from attack at sight which it would 
otherwise possess. Thus, the mere flying of such a flag by a vessel still 
recognized by the enemy as a belligerent unarmed merchantman would 
not suffice to justify an attempt to destroy it without warning. Even if 
an opposing warship were in fact deceived by the device, and in conse- 
quence failed to avail itself of its power to make an effective summons to 
surrender, it would not be justified if again sighting the vessel in endeavor- 
ing to prevent its escape at all hazards, and to that end, if no other means 
were possible, in attacking it without warning. Inasmuch as the use of a 
false flag by an unarmed belligerent ship is commonly for the purpose of 
aiding escape by flight rather than of offering resistance, the attempt to 
deceive, whether successful or unsuccessful, is neither perfidious nor harm- 
ful to the pursuer. Detection should not, therefore, excuse attack without 
warning upon the ship resorting to such a ruse. 

The situation is otherwise, however, where the use of the flag by an 
unarmed ship is for the purpose of alluring a hostile cruiser into waters 
where it will be subjected to attack by other vessels, or its safety endan- 
gered by unknown mines. In such a case it is believed that the vessel 
resorting to the ruse may be fairly attacked without warning upon the 
discovery of its design. 

The present war has given rise to inquiry whether the existing rules of 
maritime war with respect to attacks upon unarmed enemy merchant- 
men are applicable to the operations of submarine naval vessels. 

It will be recalled that on February 4, 191 5, the German Admiralty 



announced that the waters surrounding Great Britain and Ireland, includ- 
ing the whole British Channel, were to be deemed a war zone, and that on 
and after the iSth day of February, 1915, "every enemy merchant ship" 
found in the zone would be destroyed "without its being always possible 
to avert the dangers threatening the crews and passengers on that 
account." Lack of time prevents discussion of our diplomatic correspon- 
dence with Germany which immediately ensued. 

On May 7, 1915, the S.S. Lusitania was torpedoed without warning by 
a German submarine off the Old Head of Kinsale, Ireland. The vessel 
sank within twenty minutes. Eleven hundred and ninety-eight men, 
women, and children were drowned, of whom one hundred and twenty-four 
were American passengers. The cargo was a general one of the ordinary 
kind, consisting in part, however, of about five thousand cases of cart- 
ridges. The ship was unarmed; it carried no masked guns or trained gun- 
ners, or special ammunition. It was not transporting troops, and it had 
violated no laws of the United States. On August 19, 1915, the British 
liner Arabic was torpedoed by a German submarine off the coast of Ireland, 
and on March 24, 1916, the French channel S.S. Sussex, while crossing from 
Folkstone to Dieppe. Both were unarmed passenger ships, attacked with- 
out warning, and on board of which American passengers were among the 
victims suffering injury or death. 

These deplorable acts, arousing deep indignation throughout the United 
States, presented the following problems: whether undersea war vessels 
could and should be subjected to the existing rules respecting attacks on 
unarmed enemy merchantmen; whether, even if the foregoing question 
were to be answered affirmatively, Germany had a valid excuse for not 
observing them by reason of alleged excesses of its enemies; and whether 
knowledge of the presence of neutral passengers on board belligerent mer- 
chantmen altered the normal obligations of the opposing submarine. 

In its first note to Germany after the destruction of the Lusitania, the 
Department of State declared it to be a "practical impossibility" to employ 
submarines against enemy commerce "without disregarding those rules of 
fairness, reason, justice, and humanity, which all modern opinion regards 
as imperative." Thus it was said to be practically impossible for the offi- 
cers of a submarine to visit a merchantman at sea and examine her papers 
and cargo and " to make a prize of her"; that if they could not put a prize 
crew on board of her, they could not sink her without leaving the several 
occupants to the mercy of the sea in small boats; and hence that mani- 
festly submarines could not be used against merchantmen "without an 
inevitable violation of many sacred principles of justice and humanity." 



On July 21, following, the Department declared, however, that the pre- 
vious two months had indicated that it was possible and practicable to 
conduct submarine operations in substantial accord with the accepted 
practices of regulated warfare, and that the whole world had looked with 
interest and satisfaction at the demonstration of that possibility by Ger- 
man naval commanders. Finally, after the series of lamentable events, 
culminating in the torpedoing of the S.S. Sussex, the Department renewed 
the stand which it had taken at the outset, to the effect that the use of 
submarines for the destruction of enemy commerce was of necessity 
"utterly incompatible with the principles of humanity, and the sacred 
immunities of noncombatants." Nevertheless, the United States appears 
to have demanded and expected an abandonment of the existing "meth- 
ods of submarine warfare" rather than the use of undersea vessels as 
commerce destroyers. 

If the limited means possessed by a submarine of ascertaining, by any 
process, the identity or nature or national character or movements of any 
ship encountered, necessarily involves danger of indiscriminate attack at 
sight upon public or private vessels, armed or unarmed, warships or pas- 
senger liners, it would be difficult to justify under plea of military neces- 
sity the use of such an instrument of naval warfare, unless it be 
acknowledged that a belligerent may employ any means of reducing its 
foe. Maritime states have not as yet agreed thus to subordinate the claims 
of humanity, or so to sanction wanton disregard of unoffending human 
life. It is not to be anticipated that they will tolerate the removal from 
any form of war vessel of the duty to apprise itself as to the nature and 
character of enemy ships encountered as a condition precedent to lawful 
attack upon them. 

If a submarine encounters an unarmed enemy merchantman, normally 
immune from attack at sight, and not guilty of conduct forfeiting that 
privilege, no right to attack without warning is apparent. Nor is any to 
be derived from the difficulty which the former may anticipate in providing 
for the safety of the occupants of the latter. After giving adequate warn- 
ing, no destruction of the vessel should be attempted until its occupants 
are assured of at least a temporary place of refuge. The life-boats offer at 
best, as the Department of State has indicated, "a poor measure of safety." 
On numerous occasions great loss of life has ensued when the occupants of 
a merchantman have, pursuant to orders, endeavored to take to the boats. 

The cases of the British ship Falaba, destroyed by a German submarine 
March 2S, 1915, the Italian ship Anemia, attacked by an Austrian sub- 
marine November 7, 1915, and that of the American ship Healdton, tor- 



pedoed March 21, 191 7, may be cited as instances. Recourse to the boats 
in a heavy sea must always be attended with great danger. Moreover, a 
life-boat, even if it keeps afloat, affords slight protection from exposure to 
those long obliged to depend upon it as their sole place of refuge in in- 
clement weather or on an unfrequented sea. Hence the reasonableness of 
causing passengers and crew of an unoffending merchantman to put to 
sea in open boats seems to depend upon the presence of special circum- 
stances indicative of the absence of those dangers usually attending such 
procedure. 

Mere incapacity of a naval submarine to offer a place of refuge on its 
own decks does not justify a disregard of the safety of the persons aboard 
the enemy merchantman that has surrendered or obeyed a signal to stop. 
It rather indicates a limitation of the right to destroy the ship until by some 
process the safety of its occupants has been assured. Should a small sur- 
face craft such as a torpedo-boat destroyer, or a naval vessel even more 
diminutive, fall in with an enemy passenger liner having two thousand 
persons aboard, the inability of the former to offer a place of refuge to a 
majority of those persons, or to spare an adequate prize crew, would not 
in itself be deemed to justify the demand that the occupants of the liner 
take to the boats, or otherwise jeopardize their safety, in order to permit 
the destruction of the vessel on which they were carried. The submarine 
is subject to the same duty. 

In a word, the United States is believed to have taken an impregnable 
stand in its demand that the normal obligation of a warship not to attack 
at sight an unarmed enemy merchantman is applicable to undersea ves- 
sels, and that hence the right, if any, to employ them as commerce destroy- 
ers depends upon the power and disposition of those controlling them to 
respect that obligation. 

In its official correspondence Germany did not assert that the rules of 
international law respecting the treatment due to unarmed merchantmen 
were inaccurately enunciated by the United States, or that submaiine 
vessels were incapable of observing them. It was sought to excuse the 
practices of such vessels on the ground that the conduct of Great Britain 
was in such sharp defiance of international law that Germany was obliged 
to have recourse to a ruthless procedure by way of so-called retaliation. 
It is believed that the sufficiency of this plea depended upon proof that the 
enemies of Germany were in fact subjecting German merchantmen to 
treatment similar in kind to that which British and French vessels were 
being accorded. If British submarines had been attacking without warn- 
ing German unarmed merchantmen in any zone of hostilities, a situation 



8 

would have arisen which the United States might have had great difficulty 
in meeting. The British acts, of which Germany made complaint, were, 
however, of a widely different character. They did not contemplate the 
destruction of noncombatant human life on unoffending and unarmed 
vessels, and hence offered no adequate excuse for the commission of such 
acts by the enemy. Germany, therefore, owed a duty to every British 
subject aboard the Lusitania and on other British ships of similarly irre- 
proachable conduct, which no acts on the part of the state to which those 
vessels belonged had served to lessen. It may be observed, parenthetically, 
that the presence of neutral passengers on board the Lusitania did not 
alter the duty which Germany owed to that vessel. The obligation not to 
sink it at sight was one which was due an unarmed merchantman, irre- 
spective of the nationality of its occupants. If the Cunard Company was 
at fault in encouraging neutral passengers to embark on the ill-fated ship, 
that fault lay in the failure to warn them that German submarines might 
not be deterred from wanton disregard of the duty not to sink an enemy 
merchantman at sight, by even the lawful presence on board of neutral 
passengers. 

In a recent note from Austria-Hungary it is suggested that the neces- 
sary warning to a merchantman might be made before the departure of 
the vessel from port. This would imply that a belligerent has a right to 
free itself from every duty which the law of nations has imposed upon it 
with respect to noncombatant and unoffending human life, by giving 
notice that it will resort to every means in its power to capture or destroy 
even the unarmed merchant marine of the enemy. In response it may be 
said generally that the mere giving of notice can never justify lawlessness. 
To be more specific, however, a belligerent lacks the right to attack and 
destroy unarmed enemy merchantmen save under conditions which the 
law of nations, inspired by the dictates of humanity, has definitely estab- 
lished. It cannot modify those conditions at will. 

It is unnecessary here to discuss the argument employed by the United 
States, before it became a belligerent, to combat the German pretensions. 
It suffices to note that the retaliatory plea was deemed inadequate and 
unresponsive to the demands of a neutral nation. 

The most significant and satisfactory aspect of our diplomatic corres- 
pondence with Germany and Austria-Hungary is believed to have been 
the admissions drawn from both as to the duty of a belligerent, at least 
under normal circumstances, towards the unarmed merchant vessels of the 
enemy. On December 29, 1915, the Austro-Hungarian Foreign Office 
informed Mr. Penfield, in connection with the Ancona case, that: 



As concerns the principle expressed in the very esteemed note that 
hostile private ships, in so far as they do not flee or offer resistance, 
may not be destroyed without the persons on board having been 
placed in safety, the Imperial and Royal Government is able substan- 
tially to assent to this view of the Washington Cabinet. 

The assurances given by Germany May 4, 19 16, the withdrawal of 
which, on January 31, 1917, led to the severing of diplomatic relations by 
the United States on February 3, last, contained the following statement: 

In accordance with the general principles of visit and search and 
destruction of merchant vessels recognized by international law, such 
vessels, both within and without the area declared as naval war zone, 
shall not be sunk without warning and without saving human lives, 
unless these ships attempt to escape or offer resistance. 

Here is proof that the rights of the unarmed enemy merchantman are 
recognized by international law, and that the duty with respect to warning 
and the saving of human life is as applicable to the submarine of the oppos- 
ing belligerent as to its surface fighting craft. It is an acknowledgment 
that the United States has correctly enunciated the law. Whether it is to 
be maintained or abandoned depends upon the extent of the sacrifice 
which our country and the Powers with which it is happily in alliance are 
willing to make. The intensity of our own indignation at defiance of the 
law of nations is measured by the force we use to compel respect for it. 
For those of us who were born on this soil it is hard to believe that Amer- 
ica is less sensitive to injustice than Europe, or less inclined to fight for 
principle. Those Americans who to-day, depressed by the conduct of our 
enemy, declare that international law no longer exists, misjudge the temper 
of this nation and forget its past. It is unthinkable that the United States, 
however reluctant to enter the war, will regard peace a blessing, until it 
has exhausted, if need be, its whole strength, to gain assurance from Ger- 
many of the principle that it is entitled to live its life as an independent 
state when and as long as it respects the law of nations, and no longer. 



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